“Don’t Ask, Don’t Tell” — One Court Ruling at a Time

In May 2008, the U.S. 9th Circuit Court of Appeals ruled that the military cannot toss a member just for being gay. The services would have to prove the individual’s dismissal positively impacted unit cohesion.

Under the policy dubbed “Don’t Ask, Don’t Tell,” no one is to question a member’s sexual preference. Conversely, the boys and girls in uniform are to keep their sexual orientation secret. If the powder keg blows, and it is determined a member is gay, discharge almost is a certainty. Challenges to the policy have been made, and the one of latest interest is Witt v. The Department of the Air Force.
At the center of this complex tale is Air Force Maj. Margaret Witt, a decorated flight nurse. She appealed her 2004 discharge through the military court system. Once those petitions were exhausted, she requested a writ of habeas corpus, catapulting her case into the civilian courts.
Enter the 9th Circuit. The three-judge panel decided in favor of the plaintiff. Writing for the majority, Judge Ronald Gold noted Witt’s impact on her unit:
“Indeed, the facts as alleged by Major Witt indicate the contrary. Major Witt was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and, even then, it was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion.”

Despite the opinions of some close to the matter, Witt does not seem to strike down Don’t Ask. The ruling allows Maj. Witt to live to fight another day and establishes altered evidence-gathering standards for a new investigation, the “show-us-how-this-decision-improves-unit-cohesion” litmus. We’re not quite sure how anyone really wins with this, though the court is clear: You cannot use a person’s sexual orientation as the basis for a discharge.

Though the case is a year old, it still is very current. When we spoke to an attorney familiar with the government’s “interest” in this case, it seemed clear that if Don’t Ask is to be reversed (Hey, Marine Corps, are you listening?), it will come not from the top down (read: the White House doesn’t plan to touch it), but rather will be nullified by decisions like that made by the 9th Circuit. But will Witt or similar challenges make it to the Supreme Court?

The Magic 8 Ball says, “Cannot predict now.”

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